2023 (8) TMI 272

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....Nos. 2 - Computation of Tax: 3. The ld. A.R. for the assessee submitted that in the assessment order passed u/s 143(3) of the Act for AY 2020-21 the learned assessing officer disallowed the exemption u/s 11 of the Act and determined the total income at Rs. 93,48,99,765/-. The ld. A.R. submitted that during the search, no unaccounted investment or sum of money or any other article or thing or bullion etc. was found. In the assessment order also, there was no discussion of any amount being added u/s 68, 69, 69A, 69B, 69C & 69D of the Act. Apart from denying the exemption u/s 11 of the Act, the learned AO added certain unaccounted capitation fee alleged to have been received. The assessee has filed an appeal against the aforesaid assessment order and the appeal is pending. The total tax payable was determined as under: Particulars Reference Amount Assessed Income A 93,48,99,765 Income Tax (A) B = A*37.21% 35,16,07,430 Surcharge (B) C = B * 47.14% 16,57,57,162 Total D = B + C 51,73,64,592 Add: Cess E = D * 4% 2,06,94,584 Total Tax F = A + B + E 53,80,59,176 According to the assessee the correct amount of tax, surcharge and cess is as under: - Particulars Refere....

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....ubmitted that on the issue of tax calculation, it is observed that the AO had taxed the amount of Rs 23,77,50,000/- as per provisions of Section 115BBE of the Act and for the balance amount the normal tax rate as applicable for AOP had been applied. So as such there doesn't appear to be any error in tax computation, as argued by the assessee. The issue whether the provisions of Section 115BBE of the Act were applicable or not or whether the same were correctly applied by the AO is an issue on which two opinions can be there and as such it is disputable. So this issue cannot be considered as a mistake apparent from record which could have been rectified by the AO. 5. We have heard the rival submissions and perused the materials available on record. In this case, the main grievance of the assessee is with regard to charging of the tax u/s 115 BBE of the Act without invoking the provisions of section 68, 69, 69A, 69B, 69C & 69D of the Act. However, we noticed that in the assessment order, AO quantified the collection of undisclosed capitation fees. Thereafter, he taxed the undisclosed collection of capitation fees as per provisions of section 115BBE of the Act and for the balance....

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.... u/s 11 and 12 of the Act and therefore, the depreciation cannot be allowed in the return of income. The learned CIT(A) also stated that this is a fresh claim by the assessee therefore, it is not part of rectification of the order. 6.1 The ld. A.R. further submitted that the learned assessing officer has never sought for any cause before disallowing exemption u/s. 11 of the Act. Hence, in the absence of such show cause notice before denying exemption u/s. 11 of the Act, it cannot be said that the assessee has not made any claim before the assessing officer during the assessment proceedings. In addition, the learned lower authorities claim that the assessee has not claimed the depreciation in the return of income. The ld. A.R. submitted that the assessee has claimed exemption u/s. 11 and 12 of the Act therefore, claiming depreciation as deduction despite the fact that the capital expenditure being claimed as application of income will amount to violation of provisions of the Act. 6.2 Without prejudice to the above submissions and assuming but without admitting that the issue regarding the depreciation is not discussed in the assessment order and such claim was never made in the re....

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.... the Act if the assessee owns and puts the assets to use. Accordingly, we direct the AO to grant the allowable deduction towards depreciation to the assessee. Ordered accordingly. This ground of appeals of the assessee is allowed in all appeals. Ground Nos. 4 - Denial of exemption u/s. 11 of the Act 9. The ld. A.R. for the assessee submitted that in the application dated 09.11.2021 the assessee submitted that in view of the fact that the order passed u/s 12AA(3) of the Act has been set aside, the assessing officer has to compute the income by allowing the exemption u/s 11 of the Act. Accordingly, the assessee claimed that a sum of Rs. 57,14,46,073/- is exempt under section 11 of the Act. 9.1 The learned assessing officer held that exemption u/s 11 cannot be granted because the issue of cancellation of registration is still pending before the learned Principal Commissioner of Income Tax and also on the ground that the exemption is denied as per fresh findings of the second search carried out on 10.10.2019. 9.2 The ld. A.R. submitted that the Hon'ble Tribunal vide its order dated 18.06.2022 in ITA No. 155/Bang/2022 sets aside the order of the Principal Commissioner of Income Tax ....